A medical-legal definition of ADHD/ADD is often essential in the context of sentencing, family law and employment law cases, as well as in other areas of the law.

The significance of ADD in the law is apparent from these words of doctors Hallowell and Ratey, two New York City-based psychiatrists who specialize in the diagnosis and treatment of the condition:

"25% of the prison population has undiagnosed Attention Deficit Disorder. Most of the kids in the juvenile justice system have untreated ADD. Traffic accidents are 8 times more common than in the general population. If you have ADD, you are 40% more likely to get divorced than if you don't."

ADHD, ADD, ADDH

Usually, the full medical name of "Attention Deficit Hyperactivity Disorder" is not used, the condition being commonly known and presented as ADHD or ADD.

Richard Welke, in a 1990 Detroit College of Law Review article proposed even another acronym, ADDH:

"Psychiatric diagnosticians recognize two different types of the disorder: ADD (without hyperactivity) and ADDH (with hyperactivity). The general public, the media, and even some professionals, however, still continue to use the term ADD to include both types."

Anxiety Disorder

"ADHD", wrote Madam Justice Moreau of the Court of Queen’s Bench of Alberta in a family law decision published in April of 2014, "is a generalized anxiety disorder."1 To this briefest of descriptions ought to at least be added the words "occurring along a continuum of severity".4

Psychiatry is not of one mind on many aspects of ADHD/ADD. For example. clinically, as Dr. Myttas, to whom we refer below (see footnote #4), distinguishes between the two; that "ADD (attention deficit disorder) ... occurs less often. It is likely to be an entity distinct from ADHD, perhaps more akin to a learning difficulty."

While both the diagnosis, significance and most certainly some forms of treatment of ADHD continue to be controversial, the term is often used in courts of law such as these words of Justice Goodwin of the United States District Court in a disability/employment law case:

"ADHD is a psychiatric disorder. The Court finds that the Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) accurately explains the symptoms and nature of ADHD. ADHD's essential feature is a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequent and severe than is typically observed in individuals at a comparable level of development."2

A Canadian case3 accepted that ADHD was a form of disability. In the judgment, the observations of Dr. Umesh Jain, a University of Toronto psychiatrist, were taken as an expert witness: "The primary symptoms associated with ADHD are distractibility and impulsivity." Apparently there is a predetermined set of symptoms associated with distractibility and another set associated with impulsivity against which an individual is assessed to which Dr. Jain added:

"There is no diagnostic test that is capable of measuring the degree of distractibility a patient with ADHD experiences. Distractibility is central to the diagnosis but there are variations in degree among the patient population."

In terms of sentencing, the features of ADHD which tend to arise most frequently are:

"Persons suffering from ADHD have poor impulse control and are more likely to act impulsively...., an exaggerated response to threats (and ) a reduced capacity to evaluate current circumstances."4

NOTE 3: Cohen v. Law School Admission Council, 2014 HRTO 537 ((Human Rights Tribunal of Ontario). This case is of interest to the law in another regards because it involves an individual who sought to write his law school admission test (LSAT) with preferential treatment (extra time) to accommodate his alleged ADHD. The Tribunal wrote: "The respondent Law School Admissions Council offers the LSAT four times a year. Its busiest sitting is in the fall when maybe 40,000 people around the world take the test. (The Council) receives (over 2,000) requests for accommodation every year. More than half of the people who ask for it receive some form of accommodation."

NOTE 4: Expert evidence of London, England psychiatrist Dr. Nikos Myttas, set out in Ibrahim, R. [2014] EWCA Crim 121, England and Wales Court of Appeal (Criminal Division). In an article Understanding and Recognizing ADHD (retrieved from the Internet on 2014-04-27 from this then-active URL, www.adders.org), Dr. Myttas added that ADHD: "ADHD is a heterogeneous condition occurring along a continuum of severity".

Welke, Richard, Litigation Involving Ritalin and the Hyperactive Child, 1990 Detroit College of Law Review 125 (1990). He adds: "Psychiatrists describe ADD's essential features in terms of an inappropriate lack of attention and impulsivity. ADD children describe the condition as having a TV set in my head with all the channels on at once."

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Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.